Only McVeigh Can Stop The Litigation

050701, timothy mcveigh story image, JM AP / CBS

In this legal analysis, CBSNews.com Legal Analyst Andrew Cohen says that Timothy McVeigh is the only person who can expedite his execution.
We're now in a lull in the action, between the first astounding news about newly-released documents relating to the Oklahoma City bombing, and the next wave of legal decisions by Timothy McVeigh and his attorneys. Now a gaggle of lawyers in Denver and elsewhere are pouring over that box of documents to determine whether legal grounds exist to justify a new trial or re-sentencing request by McVeigh.

At the same time, those lawyers also must perform a ton of legal research to determine whether the new "facts" they are discovering can be applied to the correct legal standards applicable to fellows in McVeigh's situation. And the Nichols defense team is essentially performing the same functions on behalf of its client, now serving a life sentence for his role in the worst act of domestic terrorism in the country's history. Indeed, Team Nichols probably has more to chew on than McVeigh's attorneys, since the government's case against Nichols was far weaker – and thus far more susceptible to legal challenge.

If this attorney review – call it due diligence if you want – generates reasonable legal arguments in favor of court action, say goodbye to that June 11 execution date for McVeigh. It would be virtually impossible for a legal challenge by McVeigh to be resolved before that time. First, the attorneys would have to seek judicial relief. Then briefs would have to be filed. Then there would be a hearing, most likely a very complicated and long one raising all sorts of important issues (such as whether McVeigh's constitutional rights were violated) which any federal judge would take very seriously.

For example, U.S. District Judge Richard Matsch, who presided over McVeigh's trial, certainly would take a long look at the defense position here since it is fair to say he's already skeptical of the way the government handled evidence in this case.

Then there would have to be a ruling, which certainly could and would be appealed by one side or the other. I suppose that it is possible that all this could occur between now and June 11th. But a much more likely bet would be that Judge Matsch would give the McVeigh team more time – like an additional 30 or 60 days or so – to resolve all these issues. In fact, it is not unreasonable to figure that Judge Matsch would give them more time just to evaluate what these documents mean before McVeigh even commits to a legal challenge. That request could come as early as this week, depending upon what's in The Box.

Take this scenario, for example: Suppose one of the witness statements just released to the defense warrants further investigation. Let's just say, hypothetically, that one of the folks who called the feds just after the attack mentioned an eyewitness account which needed to be followed up. The McVeigh defense team presumaly would need to hire an investigator to follow up on the lead - and that could take several days. Multiply this scenario by a dozen, or two dozen, or fifty, and you perhaps get a sense of how unlikely it is that the investigation alone could be completed between now and June 11. And that doesn't even include the possibility that additional documents surface.

Again, it is not impossible for all this to end on June 11. But it sure isn't likely. Unless, that is, McVeigh himself calls off the dogs. He's the boss, remember, and he easily and quickly could overrule whatever it is that his attorneys are telling him. He's done it before, when he decided to drop all his appeals last December, and if he truly wants to die sooner rather than later, he may do so again.

That's about the only way this already sad and tragic story ends on June 11.


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  • CBSNews.com staff CBSNews.com staff

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